The Yekiso Judgement

SECTION 7 OF THE NATIONAL BUIDING REGULATIONS - THE YEKISO JUDGEMENT

"Once the local authority is presented with an application for comprehensive alterations or additions to an existing building ... these ought to flash red lights on the local authority as regards the probability of derogation from the value of adjoining or neighbouring properties". (Per Yekiso, J. in 'Muller and others v City of Cape Town and another', reported on 10 February 2006, in the Cape Provincial Division of the High Court of South Africa.)

The learned Judge made that remark in the context of a case concerning a building which exceeded the permissible height in terms of the Zoning Scheme Regulations and obstructed the view of the ocean from an adjoining property.

He applied section 7 of the National Buildings Act which provides for circumstances under which the local authority shall grant or refuse to grant approval of an application for approval of the building plans. Section 7(1) of the aforementioned Act, provides as follows:

"7. The approval by local authorities in respect of erection of buildings-

(1) If a local authority, having considered a recommendation referred to in section 6(1)(a) -

(a) is satisfied that the application in question complies with
the requirements of this Act and any other applicable law, it shall grant
its approval in respect thereof;

[Paragraph (a) substituted by s.4(a) of Act No 62 of 1989.]

(b) (i) is not so satisfied; or

(ii) is satisfied that the building to which the application in question relates -

(aa) is to be erected in such manner or will be of such nature or appearance that -

(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb) it will probably or in fact be unsightly or objectionable;

(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) will probably or in fact be dangerous to life or property;

such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal;

[Para (b) amended by s.4(b) of Act No 62 of 1980.]

Provided that the local authority shall grant or refuse, as the case may be, its approval in respect of any application where the architectural area of the building to which the application relates is less than 500m” or larger, within a period of 60 days after receipt of the application."

This opinion is interesting: The Judge said:

"In the absence of any clear indication on the evidence that the [City] did consider the effect the proposed building would have on the adjoining properties ... I am unable to find that, as regards both sets of plans ... that the official of the [City] properly applied his or her mind in concluding that such plans were compliant with the law. On the contrary, it appears on basis of the body of evidence that, in considering the approval of such plans, the [City] confined itself to the mechanical assessment of such plans to determine if the plans in question are complaint with the development limitations prescribed in terms of the zoning scheme regulations. I am thus unable to find, on basis of the body of evidence before me, that the official of the [City] properly applied his or her mind in approving the deviation plans ...."

It is not difficult to believe that in most, if not all examples the City adopts precisely the approach that the Judge criticised.

This case represents powerful new authority for opposing truly objectionable departure plans and comes at a time when ammunition is sorely needed by affected landowners in order to defend the value of their investments from outrageous planning approvals.

The implications must not however be overstated. At its narrowest, the judgement is clear authority for the proposition that height restrictions imposed in terms of the zoning regulations must be applied, particularly if applications for departures are likely to derogate from the value of adjoining or neighbouring properties.

Implicit in the judgement however is the admonition to town planning authorities to positively consider, observe and apply the provisions of Section 7 of the National Buildings Act, particularly Section 7(1)(b)(ii) in appropriate cases, especially when departures are involved. I suspect that they may not routinely do that (except perhaps when an objection is received, framed in those terms).

This judgement confirms the duty cast on the planning authorities to consider and apply the Act in an active and not a passive way. The least that one would expect to find in any planning approval involving departures is evidence that the planning official applied his or her mind to the implications of the proposed departures from the point of view of adjoining landowners. That would be especially so if the implications are an impairment of the views enjoyed from an adjoining property. That old chestnut often quoted, 'a view is not a right', is once again demonstrated to be palpably false.